Paua Nominees Pty Ltd v Miller

[2005] HCATrans 774

[2005] HCATrans 774

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P19 of 2005

B e t w e e n -

PAUA NOMINEES PTY LIMITED

Appellant

and

RAYMOND FREDERICK MILLER

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 SEPTEMBER 2005, AT 10.25 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   May it please the Court, I appear with my learned friends, MS B. McDONALD and MR H.M. O’SULLIVAN, for the appellant.  (instructed by Srdarov Richards Burton)

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR K.J. BRADFORD, for the respondent.  (instructed by Bradford & Co)

GLEESON CJ:   Yes, Mr Maconachie.

MR MACONACHIE:   Can I start, your Honours, by providing copies of two photographs that are reproduced in the appeal books a little indistinctly that may assist the Court.  The first of them appears at page 173 and again at page 178 of the appeal book and show the kind of structure or structures that are at the centre of the case, and also a photograph which appears at page 171 of the appeal book and again at page 180.  The second occasion for each of them to appear is in the expert’s report.  There are nine copies, if I can hand those up to your Honours.

GLEESON CJ:   Thank you.

KIRBY J:   What is the purpose of this mock-up 747?

MR MACONACHIE:   It is a training facility for certain purposes that involve military activity, your Honour.  There was before the Full Court, and of course before the trial judge, an exhibit marked 2, which is a small model of a 747 aircraft.  I do not know that your Honours are going to need it but we have asked it for it to be available if your Honours require it at all. 

Your Honours, the facts in this case were found by the trial judge and are to be found at page 204 to 205 of the appeal book.  Can I take you to them for a moment, the first of them, at page 204:

The plaintiff was employed by CIS. 

That is an acronym for a company that did insulation work.

His system of work on site was determined by his employer and conveyed to the plaintiff by Mr Pollock the site supervisor.

Mr Pollock was not called and that is a matter of some importance at the end of the day, we would say.  Secondly:

The plaintiff was able to gain access to the top of the aircraft while re‑cladding section C –

and perhaps I should interpolate here a reference to page 174 of the appeal book.  Your Honours will see that that is a representation of a 747 aircraft with various numbered points of reference.  Section C was roughly from the tail section up to the back of the wing section or thereabouts.  It is largely irrelevant for the purposes of this case.  Section B was from the wing section forward to about line 14 or thereabouts.

The plaintiff was working in that section which is identified by the lines with the numerals 12 and 13.  Section A was the forehead part of the aircraft mock‑up.  In the recladding of section C access to the top of the aircraft was gained by stepping onto the top of the aircraft from the cantilevered section.  The cantilevered section, your Honours, if you go to those photographs that I just showed you or had ‑ ‑ ‑

KIRBY J:   This is something I did not understand when I looked at the photos in the book.  The photos do appear to show that the scaffolding actually, in certain places, truly abuts the structure of the Boeing 747 model.  If that is so, why was the scaffolding designed in a way when on your client’s case it was acknowledged that there had to be a reach?  Was that because of the contour ‑ ‑ ‑

MR MACONACHIE:    It was.

KIRBY J:   ‑ ‑ ‑ of the aircraft falling away from the base of the scaffold, wherever it was?

MR MACONACHIE:    Yes.  The basic problem was this, your Honour.  In section C, the tail to the wing section, the shape of the fuselage was such that the scaffolding, which was repositioned from time to time, as the contract envisaged, abutted the side of the mock‑up aircraft in such a way that one could walk off the cantilevered section, which I will show you in a moment, onto the top of the section C fuselage, which was essentially rounded.  When the section B part of the aircraft was attended to, the same scaffolding system was used, it being a term of the contract as found by the trial judge, that standard scaffolding only would be used.

KIRBY J:   But that is a bit of a mixed bag, is it not, because it is in the same contract that there is this promise of attention to safety.

MR MACONACHIE:   Yes, your Honour, and a promise that the workers will be got as close as possible to the side of the aircraft because they had to reclad.

GLEESON CJ:   One of the obligations that your client undertook was not just to provide the scaffolding; it was to design the scaffolding.

MR MACONACHIE:   Yes, indeed, but to design it using standard equipment, and that is important because there is a finding by the trial judge that standard equipment did not include a sloping ramp that Mr van der Meer, the expert called, said would have permitted access to the top of the aircraft from the scaffolding.

GLEESON CJ:   How can you design scaffolding to enable work to be done if you do not know what the work is that is going to be done?

MR MACONACHIE:   Because, your Honour, CIS was itself skilled in the doing of the work.  The work that was done in erecting the scaffolding was done according to a specification that only standard equipment would be used, and there was a handing-over process at which the scaffolder presented that which he had designed and that which he had erected to the doer of the work, CIS, which CIS accepted, seeing that which was there on the ground, as it were, and it was for CIS to determine whether or not that which was designed, installed and handed over met the terms of the contract, and the trial judge found there was no defect in the scaffolding as required by the contract.

If the work that CIS intended to do was incapable of being done from the scaffolding, and it did not have to be done from the scaffolding, at least to the knowledge of scaffolder it did not have to be done from the scaffolding ‑ ‑ ‑

KIRBY J:   Mr Maconachie, could you help me on a practical point?  When I read this case my mind went back 30 years to when one would plead these cases and you would – I cannot imagine that you would not plead it against the employer and the scaffolder.  Was the case against the employer settled in some way or was the ‑ ‑ ‑

MR MACONACHIE:   Absolutely not.

KIRBY J:   The employer was not sued?

MR MACONACHIE:   The reason the scaffolder was sued was because statutory changes to the work injury situation in Western Australia meant that the various gateways and the like provided by the statute could not be met.  There was no worthwhile case against the employer.

GLEESON CJ:   Well, that is a common phenomenon now as a result of legislation affecting claims against employers.  A number of cases that have failed in the past in this Court are cases in which plaintiffs would have had very straightforward causes of action against their employers, but were forced to push the envelope.

MR MACONACHIE:   And this is one of them.

GUMMOW J:   We had a case called Slivak v Lurgi from South Australia which was a similar problem.

MR MACONACHIE:   Absolutely.

GUMMOW J:   Do we not have to look at the contract terms?

MR MACONACHIE:   You do, but can I try to just set the groundwork, as it were, to let your Honours know what was done?  The scaffolding, as I see it, was handed over formally as required by the regulations and the statutes that regulate the work of scaffolders in Western Australia.  The scaffolder then left the site and the work that was done from the scaffold was done under the control and supervision of CIS, the employer, according to the system of work that was designed, instituted and maintained by CIS.  It had complete and unfettered control.  If it wanted some change to the scaffold which had been erected without defect in accordance with the contract, according to the findings of the trial judge and the Full Court, all it had to do was ask.

GLEESON CJ:   When you say without defect, you do not mean, do you, without defect in design?

MR MACONACHIE:   I do mean without defect in design.  It was designed in accordance with the contract, and I will come to it shortly, your Honours.

GUMMOW J:   It is a common law case.

MR MACONACHIE:   Indeed.  The undertaking ‑ ‑ ‑

GUMMOW J:   I did not mean that as a term of approbation.

MR MACONACHIE:   No.  It was designed without any defect.  It was accepted by the employer without complaint, and I will come to that in a moment.  Could I just make the point about this cantilevered section.  At page 173 of the appeal book – that is the photograph to which I wish to take your Honours and I have given your Honours a replacement copy – you will see that there is a very tall structure made up of a series of uprights, one on top of the other, with cross‑bars in between creating a ladder‑like structure.  Above the windows of the mock‑up and about a centimetre above on the photograph, one can see a section which is proud of the main structure.  That is the cantilevered section to which much attention was paid.  One can see the work platform, a series of boards, two horizontals up from the bottom of that cantilevered section.

KIRBY J:   Is there a photograph which shows this sloping extension which was the $100 suggested alternative form of scaffolding that would have been better designed?

MR MACONACHIE:   No.  I am certain that is so.  It was a suggestion made by Mr van der Meer but it was never produced in any photographic or other representation.

KIRBY J:   I do not quite understand what it was supposed to do, but maybe that will become clearer later.

MR MACONACHIE:   I am reminded by my learned friend that at 183, your Honour, there is a representation of that article made, I understand, in the witness box.  It is dated February 2003.  The structure of the scaffolding is represented in the finer black lines, as is the cantilevered structure to which I have drawn your attention.

KIRBY J:   So basically it is an extension of the cantilevering?

MR MACONACHIE:   Yes, but it was said to be a movable one.

KIRBY J:   So that it abuts the side of the aircraft?

MR MACONACHIE:   Yes.  As I understand the evidence, it was such that it could be moved from place to place.  That was Mr van der Meer’s idea in any event.  The scaffolding planks, according to his idea of things, would be placed then on the top of the extension, the sloping ramp, call it what you like.  There is a finding of fact by the trial judge that the sloping ramp idea was not standard equipment.

Our case, so far as the contract is concerned, is that the limitation on the promises to get workers as close as possible to the side of the aircraft and that safety would be paramount, using standard equipment only was a limitation upon those promises.

GLEESON CJ:   But if the departure from the standard would only have cost $100 there are de minimis issues that arise, are there not?  Suppose it were to cost $10.

MR MACONACHIE:   It would make no difference.  It was the obligation of the employer to determine what he needed in order to do the work.

GLEESON CJ:   That may be a question about construction of the contract.

MR MACONACHIE:   It may be, if it had been $10,000.

KIRBY J:   I understand you do not dispute that your client owed a duty of care in the tort of negligence to the plaintiff.

MR MACONACHIE:   No, we do not dispute that there was a duty of care owed but it did not extend to the risk that came home.

KIRBY J:   I just press you a little further on that.  Do you suggest that in defining the extent of that duty of care that it is defined by the contract or can the common law impose obligations on you that go outside the contract?

MR MACONACHIE:   The latter. 

KIRBY J:   That would seem to follow from cases like Clayton v Heffron and so on in solicitors’ liability beyond their retainer.

MR MACONACHIE:   Yes, and Voli.

KIRBY J:   So the issue, the problem, in our case is how do you define the interrelationship of the contractual obligation with the common law obligation so that the tort of negligence does not run away entirely from the contractual obligations and yet is not governed entirely by the contract.

MR MACONACHIE:   Quite, and Sir Victor Windeyer put it this way, and I will take you to the passage in Voli v Inglewood Shire Council where he said the contract informs the common law duty because it defines the task that was undertaken by, in this case, a scaffolder. 

HAYNE J:   And, therefore, is not the start point the contract? 

MR MACONACHIE:   Yes, it is, your Honour.

HAYNE J:   And what do you mean by saying that the reference to standard equipment limited the reach, apparently, of the other elements mentioned in that provision?

MR MACONACHIE:   To say that it limited the reach of the other elements is an appropriate way of putting it but your Honour sees my point, it does.

HAYNE J:   How?

MR MACONACHIE:   Because, your Honour, there is a finding of fact by the trial judge that the term of the contracts, that standard equipment only be used, was insisted upon by CIS, the employer, for pricing purposes.  It may only have been $100, so Mr van der Meer said after the event, but at the time that the contract was made and at the time that the obligation was undertaken by the scaffolder, the employer who was charged with responsibility for devising a system for using the scaffolding and completing the cladding work said, “I only want standard equipment used because of a price concern”.  Accordingly, the scaffolder, in putting up the scaffolding, was limited to the use of standard equipment.

GLEESON CJ:   The scaffolder was not only employed to erect the scaffolding, the scaffolder was employed to design the scaffolding.

MR MACONACHIE:   Yes, indeed, your Honour, using standard equipment only.

GLEESON CJ:   With safety being paramount.

MR MACONACHIE:   Yes, your Honour, within the context ‑ ‑ ‑

HAYNE J:   With the result that in some areas may require “a little extra reach”.

MR MACONACHIE:   Yes, indeed, your Honour, demonstrating that it was in the mind of the scaffolder and plain to CIS that the scaffolder understood that work done from the scaffolding would be done standing on and within the scaffolding, but it was not a term of the contract that the scaffolding had to permit access to each and every part of the top of the aircraft.  There was a finding of fact made by the trial judge that the scaffolder did not know how the work was to be done, did not know how access was to be gained to the top of this irregularly shaped aircraft.

GLEESON CJ:   Exactly.  How can you carefully design scaffolding to perform work if you do not know what the work is?

MR MACONACHIE:   You design it if you are told to use standard equipment only in the only way that you can, that is using verticals and horizontals, and present the work to the customer in a formal handover – I hesitate to use the word “ceremony” – but occasion, when the person who has asked for the scaffolding to be designed, erected, removed and installed, looks at the scaffolding, determines whether it is in accordance with that which he has contracted for, and accepts it.  There was no dispute between CIS and the scaffolder with respect to the design of the scaffolding.  It was accepted and it was used for no less than 10 days before this incident occurred, and that absent the scaffolder.

The design requirement was satisfied plainly enough by using the kind of equipment that the scaffolder was directed to use, standard equipment only, and there was no suggestion that it was designed using that equipment otherwise than in accordance with the contract.  There was no defect either in the design or in the erection of the scaffolding – her Honour so found.  The only fact that was challenged in the Full Court, now the Court of Appeal, was whether or not the scaffolder knew that work was to be done from the top of the aircraft, and that fact was found by the Court of Appeal to have been rightly found by the trial judge, and I will come ‑ ‑ ‑

HAYNE J:   Which way did the trial judge decide it?

MR MACONACHIE:   She found that the scaffolder did not know and, we will submit, she also found that the scaffolder ought not to have known.

HAYNE J:   What is the reference then to ties permitting workers to tie off, so that they can stand on the top of the aircraft say?

MR MACONACHIE:   Well, her Honour found that the access to the top of the aircraft might have been either from inside the aircraft or from off the scaffolding.  Accordingly, for all that the scaffolder knew, access to the top of the aircraft in this bubble formation was internally and there was provided on top of the aircraft a place where people, having got to the top of the aircraft from inside, could tie themselves off with a lanyard or safety harness, and it was not for the scaffolder to provide the safety harnesses, but merely the attachment on top of the aircraft.  So that having got to the top of the aircraft, in order to do their work, they would secure themselves by putting a safety harness, if provided by the employer, upon the security device provided by the scaffolder pursuant to the contract and then do the work. 

It is important to recognise, we submit, that it was not part of the contract, was not a term of the contract, that the employees of CIS were to be able to get to the top of each and every part of the aircraft from the scaffold.  That was not a part of the contract, there was no term to that effect, and the point made by Justice Hayne underlines it.  There might be a little extra reach off the scaffold, but it does not say a little extra reach to each and every part of the top of the aircraft. 

How the cladding work was to be done was a matter for CIS, not for the scaffolder.  The scaffolder designed a scaffold using standard equipment only in the only way that it could be designed, that is, with verticals and horizontals, and if it was incapable of being used to gain access to every part of the top of the aircraft, it was a matter for CIS to say, “We want you to provide us with a further piece of equipment which will enable access from the top of the aircraft.”  That was never ever said.  Indeed, I will take you to evidence which we say invalidates the finding of the Full Court that we should have made inquiries which demonstrates that after the handover Mr McLean of the scaffolding company went back to the site and made inquiries about whether or not that which had been provided was suitable and received no complaint at all.  No complaint at all. 

So our case is that this contractual note, the terms in the note in the contract to which I will take you in barely a moment I promise, was a note made by a horny‑handed scaffolder who noted that which he had been required to do, that is, to get workers as close as possible to the side of the aircraft and that, yes, safety would be of paramount consideration, but because we are using standard scaffolding only there may be places where a little extra reach will be required.

One thing he did not do and one thing he was not required to do by CIS was to promise to provide access to the top of the aircraft at each and every place from the scaffolding.  Accordingly, both the contract and the acceptance of the structure, we say, demonstrates that any design requirement was met.

KIRBY J:   I am just not quite understanding, and maybe you have said it but I missed it.  Is access to the top of the aircraft provided by a hatch on the top of the aircraft?

MR MACONACHIE:    The finding is that the scaffolder did not know whether access to the top of the aircraft would be from inside or from outside the aircraft.

KIRBY J:   I realise that, but ultimately you are going to have to grapple with the question which the Full Court did.  That is to say, once you accept an obligation to design scaffolding with a view to safety, it becomes your duty as the expert to find out.  If you do not know, you should inquire and inform yourself.

MR MACONACHIE:    Well, we did inquire and we were told that there was not a problem, but that ‑ ‑ ‑

KIRBY J:   I am just not quite understanding how you would get to the top from inside unless there is some form of hatch in the roof.

MR MACONACHIE:    Indeed, your Honour.  So far as I am aware, according to my own recollection of the material, there is no evidence of how it might be achieved, but it was a mock‑up aircraft that was being reclad.  The cladding was being taken off and being replaced.  Whether there was a hatch or just great big holes in the fuselage skeleton, the person providing the scaffolding was not contracted to design the system of work for the recladding of the aircraft.

KIRBY J:   That is true, but it was contracted to design a scaffold which was safe, one of the purposes of which, one would think, would be to stop or help prevent a worker plunging to death or very serious injury from the top of this fuselage to the ground through the gap made by the necessary distance between the scaffold, as shown on the picture at 173, and the fuselage of the aircraft.

MR MACONACHIE:    Yes, but, your Honour, that depends on how the work was to be done and that was not something that the scaffolder was asked to design.  That is the system of work.

KIRBY J:   But he was asked to design a safe scaffold.  The whole point of a safe scaffold is to help prevent people falling to the ground to their death or serious injury.

MR MACONACHIE:    Of course, your Honour, depending upon the system of work to be used.  If the system of work to be used included doing work from the top of the aircraft, safety being provided by safety harnesses ‑ ‑ ‑

KIRBY J:   You did not know that, and if you do not satisfy yourself on that and your common law duty is to provide a scaffold that helps stop workers or provides an impediment to their dropping such a very dangerous distance, and you are the experts called in to do that, I just do not really see how you can avoid your obligation at the very least to make inquiries and find out what the system of work is so that you can provide the safe scaffold.  That is your expert duty.

MR MACONACHIE:   Your Honour, that assumes something that the contract does not provide for and that is that all of the work would be done from the scaffold.

KIRBY J:   I am accepting that there is some work done on the top of the thing.

MR MACONACHIE:   Yes.

KIRBY J:   Now, unless there are safety harnesses – which we do not know for sure were going to be provided – unless that is there and there is an alternative way a scaffolder has to provide, it would seem to me, under an obligation of contract to do so safely or even under the common law, something that stops people from falling to their death or serious injury.  That is the whole point of your exercise.

MR MACONACHIE:   No, the whole point of our exercise was to provide a scaffold using standard equipment only that was satisfactory to the employer of the workers who were going to do the work, it being a matter for the employer whether the scaffold stipulated for and provided was safe for the kind of work and the way in which that work was going to be done.  That is the nub of the case.

HAYNE J:   The Full Court dealt with this in paragraph 54 of their reasons at 252 to 253.

MR MACONACHIE:   Indeed, they did, your Honour.

HAYNE J:   What is the answer you make to the sentence that commences on the second last line of 252 over to 253, appearing as it does, of course, in context, of your client knowing or envisaging that workers had to reach the top of the aircraft and knowing that this could not safely be done from the scaffolding.

MR MACONACHIE:   And not knowing, as the trial judge found, whether access was to be obtained to the top of the aircraft internally or from the scaffold and it never being a term of the contract that the scaffold had to provide access to each and every part of the aircraft.

HAYNE J:   The Full Court say:

The respondent did not make relevant inquiries.  Having regard to the responsibility it had assumed, it should have.

What is the answer that you are making to that line of argument?

MR MACONACHIE:   The answer – and it is set out in more detail in the written submission is first, that is, to impose upon the scaffolder a duty of a positive kind and a duty of that kind is one against which the law has traditionally set its face, a duty of positive action.  Secondly, we say that it extends the task that we were contracted to undertake, that is, to provide a standard scaffolding – or a scaffolding using standard parts – to a duty to inquire, a contractual duty to inquire.

Thirdly, we say as a matter of fact that at appeal book146, line 16 Mr McLean, who was the senior officer of the scaffolder, was being cross‑examined by my learned friend’s junior:

There may be areas where they have got to get to where they can’t reach.  Is that right?---It’s possible. 

So you go and you look and test from time to time, do you?---We don’t test.  We ask the client if that’s sufficient.

At page 145, line 14 – this is again Mr McLean being cross-examined:

Let me ask my question again.  Did you ever go there, knowing what you did when you quoted, knowing that there was going to be a problem with reach – did you ever go there to see how far the reach was?---I went to site to ensure the scaffold was suitable for what the guys were doing so I spoke to the client’s representative, being Mr Pollock.  There was another gentleman on site, who was a defence guy, and they never mentioned that there were problems with access.

He did inquire.  He was not informed that that which he had designed or installed was unsuitable or ineffective for the purpose for which it was required, CIS having stipulated for pricing purposes that it wanted only standard scaffolding used.  Mr McLean made no bones about it.  He could have done.  He could have done, or something like it, that which Mr van der Meer said could have been done.

GLEESON CJ:   Or he could have said, “I know we’ve contracted for only standard equipment, but do you realise that for another $100 we can bridge this gap?”

MR MACONACHIE:   His price might have been higher than that.  Whether he said it or whether he did not say it when he made the inquiries was never investigated at trial.

GLEESON CJ:   But the nub of the question, as you have said, I think, is whether or not, having regard to the contractual obligations and the common law duty of care, it was a sufficient discharge of the safety responsibility of your client to note that CIS had no problems with the scaffolding that was provided.

MR MACONACHIE:   They made no complaint when he asked.

GLEESON CJ:   So the question is whether that is a sufficient discharge of the responsibility.

MR MACONACHIE:   That is one of the questions, your Honour, if the responsibility is read as a promise to get people as close as possible to the side of the aircraft uncontrolled by any other limitation.  But there was a limitation, a price‑sensitive limitation insisted upon by the customer who said, “I only want standard material used”, and there was no attempt to investigate the question of whether or not Mr Pollock and Mr McLean when the contract was made did or did not bargain over the question of advice.  That is effectively what your Honour is putting to me:  should he have given advice?  It was not part of the contract that he give advice.  He was told what he was to provide, a standard contract, and he handed it over.  It was there to be seen.

He asked when he came back on other occasions whether it was all right, to paraphrase the evidence I have just read, and no complaint was made about that which had been provided.  Another answer we make that goes to the foreseeability issue comes from a Canadian case that has not been notified to your Honours – it only came to our attention in the last day or so but we have copies for you – and it stands for this proposition, that once the discovery of some defect is made – and it must have been made by Mr Pollock.  He must have known how his workers were doing the work, how they were using the scaffolding.  Indeed, the plaintiff’s case was that he complained to Mr Pollock.  The trial judge so found, that he complained to Mr Pollock that there was a problem with access and Mr Pollock did nothing about it.  The case, copies of which we will provide to your Honours, Veridian Inc v Bovar Inc 216 DLR (4th) 122, stands for the proposition that once the defect was discovered, the continued use ‑ ‑ ‑

KIRBY J:   Did you say you have copies of that for us?

MR MACONACHIE:   Yes, your Honour.  Once the defect was discovered, whether it would result in continued use with the defect was not foreseeable.  Can I hand copies up to your Honours.  It is a decision of the Alberta Court of Appeal in 2002.  The headnote on page 122 reads:

A manufacturer produced diaphragms and supplied them to an intermediary company.  The diaphragms were not ordered for any specific purpose.  The intermediary company incorporated them into a high pressure gas compressor, which it subsequently sold to the plaintiff for use in its plant.  Deficiencies in the diaphragms contributed to the failure of the compressor.  The deficiencies were discovered, but the intermediary company continued to use the diaphragms in repairing the compressor.  The plaintiff was aware that the deficient diaphragms were still being used, but the manufacturer was never notified of the first compressor failure, nor advised that the same diaphragms were being used in repair.  The compressor failed again, and the plaintiff brought an action in negligence against the manufacturer.  The trial judge dismissed the action, holding that although the manufacturer’s design of the diaphragms had been negligent, there was no duty of care owed to the plaintiff.  A proper inspection would have disclosed the defects.  When the diaphragms were supplied, the parties had expressly contemplated such an inspection.

That happened in this case because there was a handover, a formal handover, and a tagging off as required by the legislation.

Moreover, it was not foreseeable that if a defect was detected, the diaphragms would still be used.

We say once CIS detected, as it must have done – the trial judge found that Mr Pollock was told by the plaintiff that he was having access and that he had to jump 3½ feet, or 1½ metres, to get onto the top of the aircraft.  Nothing was done, notwithstanding that Mr McLean went to the premises, asked whether things were as they should be and no complaint was made.

GLEESON CJ:   Is there in Western Australia the equivalent of the Scaffolding and Lifts Act?

MR MACONACHIE:   Could I just ask my learned junior, Mr O’Sullivan, about that.  The Occupational Health and Safety Act makes various provisions for it.  I cannot tell your Honour, standing here, whether or not it is in line with the Scaffolding and Lifts Act and regulation 73 – I think it became the Construction Safety Act before it was removed from the statute.  The occupational health and safety legislation around the country has taken a lot of twists and turns, your Honours.  I could not answer positively that it is in line with the New South Wales legislation with which your Honour would be at least passingly familiar.

GLEESON CJ:   I just wondered whether, if you contracted to design scaffolding, it would be an implied term of the contract that the scaffolding you designed would comply with legislation of that kind.

MR MACONACHIE:   I cannot answer that standing here, your Honour, but it was never investigated at the trial and the case was never run that way, it was not pleaded that way.  But, again, if I contract with someone to put up a scaffolding 15 feet high against a 30 foot high home building so that some painting can be done or some plumbing can be done, I do not have to ask, I would submit, either because of implied terms in the contract or because of the common law duty of care, whether or not the person who contracts for that scaffolding and that scaffolding only is going to use the unsafe practice of standing a ladder upon the scaffolding in order to reach 30 feet up in the air.  What I am contracted to do is to provide scaffolding of that design, of that height, that is safe and sound and complies with the regulations, and that is what was done here.

KIRBY J:   You say safe and sound, but you designed a scaffold that left a big gap between the fuselage of the aircraft and the extremity to which your scaffold came such that you could not reach from your scaffold to the side of the aircraft and a person falling had an easy way to fall between the scaffold and the aircraft.  That was not safe.  You did not bother to make investigations or inquiries as to how the system of work was intended to operate.

MR MACONACHIE:   My answer to that I have already given.  We did inquire and we were not told.  We handed it over and it was not rejected and the finding of fact is that we did not know, and we submit also found ought not to have known, how the work was to be done on the top of this particular part of the aircraft, section B, which was where the accident happened.  There was no difficulty at section C, none at all, and so far as the evidence goes there would have been no difficulty at section A.  It was the bubble on the top of the aircraft that created the problem and the problem, we submit, was one for the person who designed, instituted and maintained the system of work and who had the obligation so to do, because it was – and I am repeating myself – a price sensitive stipulation limitation or requirement that only standard equipment be used.

It was as obvious as the nose on one’s face, we submit.  Mr Pollock knew it because Mr Miller told him that the scaffolding that had been contracted for, accepted and found by her Honour not to be defective, did not permit work to be done in the way that CIS designed the system of work to operate.

KIRBY J:   Is this a sort of novus actus type of idea that – I know you have said in your written submissions that no one could expect an employer to put in place a system of work where a person leaps 3½ feet in the middle of nowhere with the risk of falling, that that is just so absurdly dangerous that it should never have been done.

MR MACONACHIE:   After being told by workers that they were having that difficulty.

KIRBY J:   But the answer that comes back is, you contracted to put up a safe scaffold and it is self‑evident that what you put up was not a safe scaffold because it left a gap and you should have made a detailed examination as to what was required for the safety that (a) you contracted for and (b) was in any case required by the law of negligence.

MR MACONACHIE:   Can I take you to pages 184 and 185 of the appeal book.  It is a quotation which was accepted.  You will see on the facing page 185 a slightly varied version of it, but for all intents and purposes it is the same document.

GLEESON CJ:   What was the destination of this leap that the plaintiff was taking?

GUMMOW J:   With reference to one of the photographs if possible.

MR MACONACHIE:   If you go to ‑ ‑ ‑

GLEESON CJ:   In other words, assuming it had been successful, what would have happened?

MR MACONACHIE:   Your Honour, it does not bear thinking about.  What he did and what, if I may say so, the work system required him to do, after this scaffold had been erected and accepted, was to climb one of the vertical members that you can see in 173 – and you should be looking at the clearer document that I handed up earlier, that one, if your Honours have it.

GLEESON CJ:   Yes.

GUMMOW J:   Yes, we have that.

MR MACONACHIE:   Apparently what he did was to climb up one of the vertical members to a point where he was about 40 centimetres above the kickboard or platform with a 2 or 3 kilogram drill in one hand, his right hand, with his left hand supporting himself and then leapt out and up, attempting to grab onto the overhead ladder structure that you can see at the top of the aircraft, placing his feet on the sloping side of the fuselage.

CALLINAN J:   A leap of faith?

MR MACONACHIE:   More than a leap of faith, your Honour.

HEYDON J:   When you say the overhead structure, do you mean those white bars?

MR MACONACHIE:   Yes.  That was a ladder – it was described as a ladder formation which gave horizontal stability to the structure across the top of the aircraft.

HAYNE J:   We see a rather smaller version of this manoeuvre depicted at 163 when the scaffolding is moved onto section A and the nose of the aircraft where you see a man stepping off the platform.

MR MACONACHIE:   Yes, thank you, your Honour.  It is not the section of the aircraft at which this incident occurred, but that gives one the idea of what was involved.

HAYNE J:   That is the smaller version of what was being done in section B when the leap was much larger.

MR MACONACHIE:   I think one can confidently go forward on that basis.

GLEESON CJ:   Who installed those horizontal ladder‑like structures?

MR MACONACHIE:   Are you looking at 162 now, your Honour, or 163 now, or at 173?

GLEESON CJ:   Page 173.

MR MACONACHIE:   The horizontal ladder structures.  I am not quite sure ‑ ‑ ‑

GLEESON CJ:   The white ones.

MR MACONACHIE:   The white ones, we did, the scaffolder did that.

GLEESON CJ:   So that was part of the scaffolding?

MR MACONACHIE:   That was part of the scaffolding.  It was to give it – principally, to give it structural stability.

HAYNE J:   And it is those ties across the top of the aircraft that are the ties referred to at line 31 on page 184 as being the ties that would:

permit workers to tie off with body [harnesses] so they may, if necessary, stand on top of aircraft.

MR MACONACHIE:   Not as I understand it.

HAYNE J:   No?

MR MACONACHIE:   I may well be wrong.  Could I just make certain of my own – there was a wire running longitudinally from the tail to some portion of the aircraft near this bubble, your Honour.

HAYNE J:   Yes, and that wire is supported on those cross‑members, is it not?

MR MACONACHIE:   Yes, it is, your Honour.

HAYNE J:   So that the ties that were being spoken of in the quotation were ties that were to be, in the mind of the scaffolder, used as a safety mechanism for those standing on top of the aircraft?

MR MACONACHIE:   Absolutely.  The question, your Honour, is how they got to the top of the aircraft.

HAYNE J:   Something the scaffolder did not know and did not inquire about?

MR MACONACHIE:   He certainly did not, but what he did do – and I have said this before – was to hand it over, to come back and ask whether it was suitable and no complaint was made notwithstanding that Mr Miller personally had made a complaint to Mr Pollock, and it was the employer who did nothing about an adjustment to the scaffolding to in order the way he wanted the work to be done to be done safely.

GUMMOW J:   So far as the worker was concerned and the worker’s directions from the employer, how was the worker going to get on the top, other than jump?

MR MACONACHIE:   The finding made by the trial judge was that ‑ ‑ ‑

GUMMOW J:   Presumably, someone had given him the direction to work on the top.

MR MACONACHIE:   Yes, well, of course, the employer was not a party to the proceedings.

GUMMOW J:   I realise that.

MR MACONACHIE:   The employer, Mr Pollock, was not called.  No evidence was given about what directions - as I recall it - he was given and the finding of fact by the trial judge was that ‑ ‑ ‑

GUMMOW J:   What directions could he have been given?

MR MACONACHIE:   To enter or to gain access to the top of the aircraft from the inside of the aircraft.  The cladding was being removed.  Access could have been obtained and then he could have been told when you work on top of the aircraft tie off with a safety harness but that, your Honours, was a matter for the person who devised the system of work.  We did not contract to do so.  There was no obligation upon us contractually or, we submit, otherwise to make specific inquiries about how the work was to be done on top of the aircraft at the various places at which it was to be done.  It was, after all, CIS’s expertise to do this kind of work and if it was presented with a scaffold which it must have known - one only had to look, indeed Mr Miller told them ‑ was unsatisfactory to gain access externally, it was a matter for the employer to cause the scaffolding to be reconfigured.

KIRBY J:   Yes, well the more you build up the self-evident lack of safety of this, the more you create problems it seems to me for yourself because though it is true the employer had duties to make the system of work safe for the worker you were the expert in scaffolding and the whole point of scaffolding was to provide a high measure of safety for workers working in this position and you had the special knowledge of how scaffolding had to go and yet you did not inquire in advance and did not seek to find the system of work that would have identified this leap of faith.

MR MACONACHIE:   We were not contracted to design the system of work, your Honour.  I have said it before.

KIRBY J:   Well, query whether you were not, because there was the contractual obligation to design the scaffolding safely.

MR MACONACHIE:   Indeed, using that limitation of standard equipment cannot be overlooked.  It is absolutely central.  It was a contractual term insisted upon for price sensitive purposes.

KIRBY J:   Yes, but Mr Maconachie, it is not rocket science to work out you have to put up an extra plank to get the person up onto the contoured shape of the roof of the Boeing 747.  It is not rocket science.  It is a $100 arrangement of a plank and a cantilever.

MR MACONACHIE:   If that is the way the work was intended to be done, your Honour, but that assumes that CIS’s system was going to be to use external access only, it being the expert.

GUMMOW J:   Is there any evidence about internal access?

MR MACONACHIE:   Not that I can recall.

GUMMOW J:   And what the internal structure of this mock‑up was.

MR MACONACHIE:   No evidence about that.  The only finding made relevantly was that CIS did not know and, we say, her Honour also found had no reason to know whether work was to be internally or externally.

HAYNE J:   The plaintiff’s description of what was happening as given in‑chief appears particularly at page 27.  He could step off the scaffold at the tail.  As the scaffolding was moved down the aircraft it was getting harder and harder.

MR MACONACHIE:   Indeed, your Honour.  I can understand how your Honours would see this as being a central issue in the case.  Our short point is that that was not our job.

GLEESON CJ:   Can we have a look at the contract, page 184?

MR MACONACHIE:   Of course, your Honour.  I had taken you there a few minutes ago but got distracted.

GUMMOW J:   No, you have not.  You flitted.

MR MACONACHIE:   Yes.

GLEESON CJ:   I realise that we are not concerned with section A in terms of the accident but what the contract says about section A is of some interest in this connection, is it not?

MR MACONACHIE:   Yes, “stand on top of aircraft”.  We are to provide, there is no question about it, and we did provide, the means by which workers could safely stand on top of the aircraft.  We were not contracted to provide them with external access.  We were contracted to build a scaffold from which work could be safely done standing on the scaffold.  If work was to be done that could not be done standing safely on the scaffold, even requiring a little extra reach, then a different kind of scaffold was required and that was a matter of contract between Mr McLean’s company and Mr Pollock’s company.

GLEESON CJ:   The note does seem to contemplate external rather than internal activity, does it not?

MR MACONACHIE:   It does, of course, your Honour, but not access to the top of the aircraft.  It is absolutely silent upon it.

HAYNE J:   The plaintiff described it as getting to the point, once all the cladding is off, of course you can climb on the framework.  Once the cladding goes on he described it as being, in effect, confronted by “a wall of metal”. 

MR MACONACHIE:   Indeed.  Can I pose this question?

HAYNE J:   How else are you going to get up there, Mr Maconachie, except externally?

MR MACONACHIE:   From the inside.

HAYNE J:   Yes, if you are very thin when the last plate is going on.

MR MACONACHIE:   That would exclude me, your Honour, but the question of how it was to be done – I can say this in a dozen different ways – was for the employer.  We did not specifically ask for the system of work to be outlined in exquisite detail, we did not.

GLEESON CJ:   Coming back to page 184:

Instant Scaffolds WA will endeavour to get workers as close as possible to the work face ‑ ‑ ‑

MR MACONACHIE:    ‑ ‑ ‑

utilising cantilevers etc ‑ ‑ ‑

GLEESON CJ:   That looks like some involvement of the scaffolder in the system of work, does it not?

MR MACONACHIE:   The scaffold necessarily required – if work was to be done off the scaffold, and I say again it does not say all of the work has to be done off the scaffold, but if work was to be done off the scaffold, of course you had to be able to reach in order to put these eight‑metre pieces of cladding on the external structure or the skeleton of the aircraft.  The word “endeavour” should not be overlooked, your Honours:

Instant Scaffolds WA will endeavour to get workers as close as possible to the work face utilising cantilevers etc. but because of the curvature of the mock-up and the fact that we will be utilising standard equipment only some areas may require a little extra reach ‑ ‑ ‑

GUMMOW J:   Not a leap of faith though.

MR MACONACHIE:   No, but only, your Honour, if the work is to be done from the scaffold.  But this contract does not specify that Instant Scaffolds had to provide a scaffold from which all of the work contemplated was to be done from the scaffold.  There was provided a mechanism for safe work to be done on top of the aircraft using harnesses.

GLEESON CJ:   The reference to safety being paramount in the context of the immediately previous reference to areas requiring a little extra reach indicates, does it not, that the kind of safety that was there being referred to was not only safety of the scaffold but also safety of the system of work?

MR MACONACHIE:   No, safety of the workers using the scaffold.  There is a difference.  If work was to be done from the scaffold, then safety would be paramount, then the important words, “in the type of system we supply”.  The type of system we supply was using standard scaffold.

GLEESON CJ:   Were they not saying, “We won’t design a scaffold that will require workers to do something dangerous.  They may have to reach out a little extra in some places because of the curvature of the plane, but at all times safety will be paramount in the system we supply”?

MR MACONACHIE:   “In the type of system we supply”.

GLEESON CJ:   That is not merely a representation that the scaffold is not going to fall apart, is it?

MR MACONACHIE:   No, it is a representation that “If you stay on the scaffold, you might have to reach a little further to do some of the work but, given that we’re using the type of system which involves only standard equipment, within that context safety will be paramount”.

CALLINAN J:   Mr Maconachie, is not your problem about all of that the evidence in cross‑examination of Mr McLean at page 143?

MR MACONACHIE:   The short answer to that question is no, your Honour, but I am happy to go there.

CALLINAN J:   He anticipated the problems and he knew that the reach was more than two metres.  He thought perhaps it could be manageable by harnesses, which seems an unlikely proposition, and they did not even supply harnesses.

MR MACONACHIE:   It was not the obligation under the contract of the scaffolder to supply the harnesses.  It was the obligation of the employer.  What that cross‑examination and the answers given in it do not address is the question of how access was to be obtained to the top of the aircraft.

CALLINAN J:   Well, I am not too sure about the harnesses either that you have just heard about.  That appears at page 144.  Those harnesses were for working on top of the aircraft, not for getting up onto the top of the aircraft.

MR MACONACHIE:   Yes, and then the next question, your Honour, or the answer:

They shouldn’t need them because they are working on the scaffold.

CALLINAN J:   Which we know from ‑ ‑ ‑

MR MACONACHIE:   And then the next question:

I don’t know how they were doing their job.  I had no idea of their method of their project.

It comes down to the question that ‑ ‑ ‑

CALLINAN J:   But he was on site from time to time.

MR MACONACHIE:   Yes, he was, your Honour.  At 145, I have taken you to it, and 146, 19, but 145, 15:

I went to site to ensure the scaffold was suitable for what the guys were doing so I spoke to the client’s representative, being Mr Pollock.  There was another gentleman on site, who was a defence guy, and they never mentioned that there were problems with access -

that in the context, your Honour, of a finding by the trial judge that Mr Miller had complained to Mr Pollock about access and about this dangerous activity and nothing was done by the employer.  I can say the same thing over and over again, but it does not get any better.

GLEESON CJ:   Mr McLean behaved absolutely consistently with your argument, which was that as long as the employer had no complaints about this, it was not any further concern of his.

MR MACONACHIE:   Because it was a matter for the employer how the work was done, your Honour.  Nothing in this contract imposed upon Mr McLean or his company the obligation to design a system of work.  It was to design a scaffolding of a particular kind with particular limitations that were price sensitively specified and it was then a matter for the employer about how it did the work safely using that scaffolding, and if it wanted other and different scaffolding it paid for it.

GUMMOW J:   Knowing what one knows now, you are lucky to hang on to your grant of special leave.

MR MACONACHIE:   Well, your Honour, we would submit not for the very reason ‑ ‑ ‑

GUMMOW J:   Let alone re-open Wyong v Shirt.

MR MACONACHIE:   Well, your Honour, the point of this case, the point of this case was, is that the way in which ‑ ‑ ‑

GUMMOW J:   The point of this case involves ruminations on this rather cryptic contract.

MR MACONACHIE:   Only, your Honour, only if you do what ‑ ‑ ‑

GUMMOW J:   Cryptic, but including the reference to paramount safety.

MR MACONACHIE:   Indeed, but her Honour construed the contract and did so by finding that that which was of importance was the limitation ‑ ‑ ‑

GUMMOW J:   Yes, I know that, but her Honour’s construction of the contract is not going to inhibit me, I have to tell you, Mr Maconachie.

MR MACONACHIE:   No, of course not, your Honour.  I do not for a moment suggest otherwise.

GUMMOW J:   It is a pure question of construction.

MR MACONACHIE:   We submit not.  That what it is is a question of what are the obligations imposed by the contract and how do they inform the common law duty of care.

GUMMOW J:   I realise that, but step one is construe the contract ‑ ‑ ‑

MR MACONACHIE:   Of course it must be.

GUMMOW J:   ‑ ‑ ‑ as I said at about 25 past 10.

MR MACONACHIE:   Yes, but you cannot and you must not just strike a line through the words “but because of the curvature of the mock-up and the fact that we will be utilising standard equipment only” – you cannot strike those words out.

KIRBY J:   Which form of the contract should we be looking at?  Is it the 185?

MR MACONACHIE:   It does not really matter, your Honour.  You will see the quotation that does not have the B number, that is, the one on 184, is dated 14 November 1996 and gives a total price of $8,960.  The one on the facing page, 185, has a B number.  It is dated 19 November 1996, the total price and the prices against position A), position B) and position C) have been obliterated, as being treated by the parties as irrelevant to any of the issues.  All that happened was that, it seems, CIS asked for a breakdown in terms of sections.  “How much will position A) cost?  How much will position B) cost?  How much will position C) cost?”  So the words otherwise are exactly the same.

KIRBY J:   Once you accept that the duty of care exists and once you accept that the duty of care is not delimited by the contract, then the case seems to come down to one of its own special facts.

MR MACONACHIE:   No, it does not with respect, your Honour, because ‑ ‑ ‑

KIRBY J:   I am wondering why special leave was granted in the case.

MR MACONACHIE:   The duty of care is not delimited by the contract, it is informed by the contract, and it identifies the task that we undertook, as Sir Victor Windeyer said in the Voli Case.

KIRBY J:   That sounds like weasel words to me, “not delimited by, but informed by”.  How does one ‑ ‑ ‑

MR MACONACHIE:   It informs the task.  It identifies the task that we undertook, and the task we undertook did not include designing a system of work.  But that is obviously a question that interests the Court and we submit that you can only get to the point of regarding the contract and the task that we had to undertake in the way that the Full Court did by just obliterating the words relating to the kind of materials that we had to use – again, price sensitive, at the insistence of CIS.

KIRBY J:   Justice Callinan, or I think it may have been Justice Heydon on the special leave hearing – I think it was Justice Callinan asked whether the powers of the Court of Appeal of Western Australia, or the Full Court, are the same as the Court of Appeal of New South Wales in Fox v Percy.  Now, can we assume that it is the same legal regime ‑ ‑ ‑

MR MACONACHIE:   You can, your Honour.

KIRBY J:   ‑ ‑ ‑ that they have their own duties to consider the facts as well as the law?

MR MACONACHIE:    That was a question asked of Mr Martin, as I recall it.  He acceded to it, and we take the same view.  There is no dispute about that.

KIRBY J:   So what is the important issue in the case?  It does not seem to stand out.  It just seems to be a case where there is a duty of care.  It is not delimited but informed by the contract.  The contract has some provisions that seem to integrate your activity quite naturally to the system of work because the two have to work together.  You are putting up the contract that the workers will use for their safety and you cannot have a scaffold which envisages that workers have to leap 3½ feet to get onto a sloped dangerous surface and with the peril of falling an awful long distance where they might be killed.

MR MACONACHIE:    Indeed.  Step one, the type of material we had to use.  Step two, it was constructed and handed over to the person who was going to use it and that person accepted it without complaint.  Step three, there was an attendance – I have taken you to the evidence at 145 and 146 – when inquiry was made about whether the scaffold used was satisfactory for the use to which it was being put, and no complaints were made by the people whose obligation it was to superintend the doing of the work and who were in control of the doing of the work.  Step four is the – well, it is the same point.

To the extent that the Full Court found that there was an obligation to make relevant inquiries, those relevant inquiries were made.  We surely did not have to go and ask each individual worker whether or not that which was being done was appropriate.  We were not there all the time; we were only there occasionally.  We were dependent upon the contracting party to express satisfaction or dissatisfaction with what had been provided pursuant to the contract.  No dissatisfaction was expressed, notwithstanding that it was on 9 June that the reconfiguration occurred and it was 19 June when the incident involving Mr Miller occurred, and that after Mr Miller complained and no complaint was made to us or any request made to reconfigure.

Your Honours, we pose this question:  if Mr McLean had said, “Your people cannot gain access from the scaffold to the top of the aircraft”, what would have been the situation if Mr Pollock had said, “Don’t you worry about that; that’s my concern, not yours”?  That is effectively what happened, in that inquiries were made about whether or not that which was provided was suitable for the work and no complaints were made. 

The point of the Canadian case, your Honour, the defect having been determined, assuming there to be a defect – her Honour found there was none – it was not foreseeable that the employer and/or the workers would use the system without the defect being brought to the attention of the person who provided it and without the person who provided it being put in a position whereby any such defect could be remedied.  It is far‑fetched and fanciful to impose upon the defendant an obligation to foresee that kind of conduct. 

Foreseeability, your Honours, is a product of knowledge.  There is a finding of fact, unchallenged, we did not know that this kind of risk attended the doing of the work, nor ought we to have known.  There was nothing about our relationship with the work and the workers which ought to have caused us to contemplate that this kind of dangerous activity would be undertaken – nothing.

Can I go back to the written submission, if I may, your Honour.  It is, I hope, comprehensive.  It sets out the points that we wish your Honours to consider and which we assert demonstrate the error made by the court below, but I recognise that it is central to a consideration of the case the way in which your Honours define the obligation that was undertaken by the scaffolder. 

If your Honours take the view that the contract imposed upon the scaffolder was an obligation to, in effect, design a system of work or at least to interrogate to determine what the system of work was, and if you conclude that the material to which I have taken you does not satisfy that obligation, notwithstanding that the defect was known to the employer, notwithstanding complaints were made by Mr Miller, notwithstanding that no request was made to modify that which had been provided, then I am in some little difficulty, but each of the other matters that we wish to put before the Court for decision really depend upon that first point.  That which is set out in the written submissions is comprehensive, we hope.  If there is any aspect of it that your Honours particularly want assistance with?

KIRBY J:   I got a bit lost.  I did read it carefully but I got a bit lost in the historical material, and you say at a certain point in Wagon Mound, picked up in Shirt, that the law took a wrong turning?

MR MACONACHIE:   Yes.

KIRBY J:   Could you just in your own words express what you say is the wrong turning and then make it relevant to the facts of this case?

MR MACONACHIE:   Yes, your Honour.  The wrong turn, we submit, was to – I think I used the word, “disembody” foreseeability from the calculus considerations.  Justice McHugh in Tame, and we would say Justice Walsh at first instance in the Wagon Mound and the cases that came before Wagon Mound and required that the question of foreseeability of risk has to be considered at the same time as the considerations of at least preventability and practicability because unless you so consider those matters what risk is to be foreseen is incapable of definition.  That is how I would put it in my own words.

GLEESON CJ:   When, Mr Maconachie, did the word “calculus” enter into this area of discourse?

MR MACONACHIE:   About the mid to late 70s, I think, your Honours – I think, I might be wrong, but I think it was a word used by Justice Glass in one of his judgments ‑ ‑ ‑

GLEESON CJ:   Yes, and “undermining” was another word he used.  I can understand why.

MR MACONACHIE:   “Undermining” is definitely another word he used, and I can be certain about that.

KIRBY J:   You want to make it very, very demanding.

MR MACONACHIE:   Not at all, but it has to have substance, your Honour.  It has to have significance.  One has to be able to appreciate not only that there is a risk but that it is a risk about which you would do something.  You cannot disembody one from the other.

GUMMOW J:   You have to ask yourself, do you not, what if anything a reasonable man would have done by way of response to the risk?  That is part of this so‑called calculus as well, is it not?

MR MACONACHIE:   It is.  It is a very important part of the calculus ‑ ‑ ‑

GLEESON CJ:   The problem is it is not a calculation, it is a judgment.

MR MACONACHIE:   Indeed, it is.  Your Honour, I accept that completely.  Of course it is a judgment, having regard to various factors, but what Wyong v Shirt does is to set up a preliminary inquiry about foreseeability which, as I have put it in the document, disembodies it from all of the other considerations and gives it a sense of unreality causing in its application a slide from, “Yes, that is foreseeable” into – because it is easy to do something about, ie, only $100, you should have done something about it.

GLEESON CJ:   A slide that is especially easy to take in warning cases, because warnings are usually cheap.

MR MACONACHIE:   Yes.

GLEESON CJ:   You also have a problem, do you not, with far‑fetched and fanciful?  Is not part of your argument that to limit unforeseeability to risks that are far‑fetched and fanciful produces the same kind of result?

MR MACONACHIE:   Yes.

GLEESON CJ:   We are always dealing with risks that have eventuated.  If they did not eventuate, they would not come to us.

MR MACONACHIE:   Indeed.  See what Sir Owen Dixon said in argument in Chapman v Hearse.  In the written submission - perhaps I should take you to the page to identify it – it is at page 10 of our written submission, your Honours.  We refer firstly to Wagon Mound (No 1) and then on the next page to Wagon Mound (No 2).  The essence of the argument is set out in detail and I am not going to read it to your Honours, but in paragraph 73 we say this on the top of page 13.  They plainly used the words “real risk” in the quoted sense, in the sense of real and substantial risk or chance. 

That is because on our analysis, which we commend to you, there was this taxonomic exercise undertaken whereby their Lordships divided the older cases which they were considering into two categories.  The first were mere possibilities which they said were far-fetched or fanciful risks and then real and substantial risks or chances, and the reference is given.  They thereafter used the term “real risk”, we say, on any reading of it in the same sense as real and substantial risk or chance.  All of the cases that had gone before required foreseeability in the sense of appreciation, significance, substance, but something more than, “Gee, can it happen?” which is there far‑fetched and fanciful puts you, and anything is possible.

GLEESON CJ:   On one point of view it eliminates foreseeability as a control mechanism.

MR MACONACHIE:   Yes, it does.  We have given your Honours the reference in the written submission.  What Lord Buckmaster said in Donoghue v Stevenson, really repeating the words of Lord Justice Brett, as he then was, in Heaven v Pender, was the use of the words “would at once recognise”.  My learned friends deprecate the emphasis on the words “at once”, but what he was intending to convey was not something that was going to slap you in the face but something that, with care and prudence, would be recognisable as an appreciable significant risk of substance, not something that just might happen.

In this case could it really be said that the reasonably prudent scaffolder, having made inquiry, would sit down and contemplate, “Well, I suppose, with a drill in his right hand and a hope in his heart, he could leap across 3½ feet, 1½ metres, after he has complained to his boss.”

GLEESON CJ:   In a sense, it comes back to the question that you describe as the nub of the issue:  what do you expect of a scaffolder in a situation like this?

MR MACONACHIE:   Yes, but what you expect of him – and I am not going to go over the same ground again – is what he contracted for and what he contracted for did not include this $100 ‑ ‑ ‑

KIRBY J:   Yes, but you, yourself, have accepted the contract is not the definition of the duty of care in common law negligence.  It cannot be, otherwise all those cases of solicitors’ liability outside their contract of retainer would have been decided the other way and we would be back to the period before Groom v Crocker.

MR MACONACHIE: Can I take your Honours to 110 CLR 74. I do not think I will trouble to tell your Honours what the facts of the case were, but at page 85, second full paragraph:

First, neither the terms of the architect’s engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts.  Nor can they directly determine what he must do to satisfy his duty to such persons.  That duty is cast upon him by law, not because he made a contract, but because he entered upon the work.  Nevertheless his contract with the building owner is not an irrelevant circumstance.  It determines what was the task upon which he entered.  If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it.

Secondly, the obligation of an architect who designs a building and supervises the building of it ‑

we were not supervising the work that was being done, of course –

is not co-extensive with the obligation of the person who afterwards occupies it.  The occupier may be liable for injuries to visitors caused by pitfalls and unusual dangers on the premises, resulting from such things as unlighted obstructions, slippery stairs, unguarded openings.  But an architect is not liable merely because an unwarned visitor to the building he designed comes to harm there.  It is the occupier’s concern, by guarding, lighting, warning or otherwise –

and, we would submit, devising, instituting and maintaining a safe system of work for your employees –

to protect persons against unexpected dangers that are there.  Such dangers can exist although the premises themselves be well built and suitable for their purpose.

These were, they did not fall down – the scaffolding that is – and it was accepted without complaint even after inquiry by the employer.  He goes on:

Put shortly, an architect is not ordinarily liable because someone falls down in the building and is injured.  He may be if the building falls down and someone is injured.

That, we submit, in the context of this case, is important and limiting in terms of what our duty of care to Mr Miller extended to.  I hope that answers Justice Kirby’s question about ‑ ‑ ‑

KIRBY J:   My problem remains, Mr Maconachie, that on one view the Full Court made no error because it simply applied the existing law and that even if the existing law were nuanced in the way that you want it to be, you would reach the same conclusion because if you ask what could be expected of a reasonable scaffolder, the answer, it seems to me, when you deal with a fuselage of this shape and the danger of a fall at that height, that you still come to the same conclusion and that therefore this is not a very suitable case in which to perform the act of nuancing.

MR MACONACHIE:   Well, we would submit that your Honours’ exposition of the matter leaves out the very important considerations that the person using the scaffolding, CIS, knew of the defect, did not complain of the defect, permitted or required this extraordinary activity to be undertaken and that is something that the appellant could not, even on a far‑fetched and fanciful test, be expected to have foreseen, and her Honour effectively found so.

KIRBY J:   I will not say it again, but I have said it before, to the extent that you say it is self‑evidently an outrageous and unsafe activity that the employer was expecting of its employees, this is something which you, as the expert scaffolder, ought to have seen most clearly of anyone on the whole site and to have taken steps in the contract which you agreed with the employer to ensure the protection of the plaintiff’s safety, that being the essential purpose of putting up a scaffold.

MR MACONACHIE:   Indeed, your Honour, depending on where and how the work was to be done.  But we have been over that country.  Thank you, your Honours.

GLEESON CJ:   Yes, thank you, Mr Maconachie.  We will adjourn for a short time to consider the course we will take on this matter.

AT 12.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.11 PM:

GLEESON CJ:   Having had the benefit of hearing full argument on behalf of the appellant, it appears to the Court that the outcome of this appeal turned upon the application of settled principles to the particular facts and circumstances of the case.  It is common ground both that the appellant owed a duty of care to the respondent and that the contract between the appellant and the respondent’s employer was relevant to the content of that duty. 

The finding by the Full Court of the Supreme Court of Western Australia that the conduct of the appellant was in breach of its duty of care involved no departure from principle and was well supported by the evidence in the case.  It is true that the appellant submits that this Court should reconsider settled principle.  Without expressing any view on the general appropriateness of any such reconsideration, we consider that this case is not the occasion for such an exercise.

In those circumstances, we are of the view that the grant of special leave to appeal should be rescinded.  We order accordingly.  The appellant must pay the costs of the respondent.

MR WALKER:   May it please the Court.

MR MACONACHIE:   May it please the Court.

GLEESON CJ:   We will adjourn until 10.00 am tomorrow.

AT 12.13 PM THE MATTER WAS CONCLUDED